Medical negligence challenges and legal practice around the globe

In judicial practice the number of cases when the clinic is also held liable for the acts of one of its employees is slowly, but gradually increasing. The situation becomes more complicated if a medical error occurred after, for example, the physician sent a patient for further treatment to other specialists. If the damage is caused by employee of the clinic, the patient can use several options to protect their violated rights: to file a claim against a particular individual (a physician), by the virtue of efforts of which, in his opinion, the damage was made; against the clinic or against both, attracting clinic as a respondent. In practice, a better part of claims is brought against the health institutions (clinics). Importantly, an institution’s (clinic) responsibilities include: providing medical care for patients and being liable for the negligence of its employees.

The issue of liability of clinic currently remains a controversial and debated question, not only in the legal literature, but also in judicial practice. The decision on this important issue also depends on the health system adopted in the state or region and the relations that govern patient-doctor relations by the law. This issue has repeatedly been considered at the highest level and in the jurisprudence of the Anglo-American legal system, where the approach to it is quite flexible.

In Australia, in Ellis case against Hospital in Wallsend District the Court has made a decision by a majority vote, that ‘the clinic is jointly and severally liable in cases where the patient can go directly to the hospital for treatment or consultation. This responsibility does not occur when the clinic simply provides that services used treatment approaches used in their institution’.

In another case, the Ontario Court of Appeal decided that ‘the duties are not limited to a simple hospital hiring of competent staff’. In establishing the fact whether there was the fact of negligence, the courts adheres to the same definitions that are used in the determination of any other civil lawsuits or criminal cases. Therefore, in the UK the narrow specialisation is on the rise – according to Solicitors.Guru, one of the largest legal databases in the UK where anyone can find a solicitor easily, the number of medical negligence solicitors has increased by 15% in comparison with 2014.

The main question to be answered by the judge is whether there was an improper action made by personnel. In other words, whether the treatment applied by a doctor (the clinic), was below the standard of care, which is set by law, and, therefore, a tort or a criminal offense are considered. The main and most difficult task that the plaintiff has to solve is proving the burden that negligence was the cause of the doctor’s actions. As a rule, this task is very hardly feasible. Practice shows that the patient trying to achieve success in the trial faces greater difficulties than when participating in any other lawsuit that involves health damage. The analysis of judicial practice in Western Europe, where medical law and case law systems are oftentimes considered to be exemplary, shows that the courts are likely to rule out the case in favor of the plaintiff approximately in 30-40% of cases, compared with 86% of the total of other cases.